Sibghat Ullah Khan, J. - (1.) HEARD Learned Counsel for the appellants and Learned Counsel for respondents who have appeared through caveat at the admission stage.
(2.) THIS is defendants' Second appeal arising out of O.S. no.745 of 1998 which was dismissed on 12.7.2004. Against the said decree plaintiffs respondents filed Civil appeal no.80 of 2004 which was allowed by A.D.J. Court no.3, Meerut, through judgment and decree dated 14.9.2011. Decree passed by the trial court was set aside. Suit of the plaintiffs was decreed and defendants no. 1 to 4 were restrained from taking forcible possession of the disputed land or from interfering in the plaintiffs possession or in plaintiffs utilisation of the property in any manner including repairs etc. This Second Appeal is directed against the lower appellate court decree. Parties are members of the same family. The property in dispute is agricultural land. The agricultural land of the family was partitioned among different co -sharers during consolidation in 1966 and each co -sharer got separate chak. The further case was that plaintiffs and defendants established a sugar crusher in 1970, a plant was installed on the agricultural land of defendant no.1. However, the joint business was separated in 1980 and machines and plant of the crusher came in the share of defendants no. 1 to 4 and plaintiffs separated themselves from the business. About 4 bigha kucha land of Khasra no.198 which had come in the chak of the plaintiff in the consolidation in the year 1966 was being used in connection with the crusher business for and storing and drawing sugar cane etc. It was shown by letters A,B,C,D in the plaint map. Plaintiffs asserted that they intended to construct a wall in ABCD towards the site where crusher of the defendants was continuing in order to separate their land and avoid any possibility of defendants encroaching upon the same for using in connection with the business of crusher. However, defendants obstructed hence suit was filed.
(3.) THE trial court had decided in favour of the plaintiffs that they were the owners (bhoomidhars) of the land in dispute, however, suit was dismissed by it on the ground that they were not in possession. The lower appellate court rightly held that after allotment of separate kuras/chaks each of the four brothers tenure holders became bhoomidhar in possession of the land which came in his kura/chak. Crusher was jointly installed in 1970 and land in dispute was being used in connection therewith. However, after separation in 1980 it was obvious that plaintiffs had no concern with the business hence their land was not to be used in connection with the business. In the revenue record land in dispute is recorded in the name of the plaintiffs. Even if after separation of the plaintiffs from crusher business, occasionally defendants used part of the plaintiffs land in connection with business of crusher it can not amount to dispossession of the plaintiffs. Lower appellate court held that plea of adverse possession had not been raised in clear terms by the defendants and right of the plaintiffs had not totally been denied. The defendants had asserted that they were using the land in dispute for keeping khoi and Boonga.;